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Is Twitter preparing for a trademark crackdown?

As far as companies go, Twitter is pretty laid back. When it comes to legal issues, Twitter has been anything but aggressive.

The creators of popular applications like Twitteriffic and TweetDeck have never, to my knowledge, been threatened by Twitter over trademark abuse. Twitter even promotes them on its apps page.

But is that set to change? Robin Wauters of TechCrunch reports that TechCrunch was forwarded an email conversation that took place between a Twitter employee and a third-party developer who was working with Twitter’s API. It states:

Twitter, Inc is uncomfortable with the use of the word Tweet (our trademark) and the similarity in your UI and our own.

Sure enough, in April of this year Twitter filed a trademark application in the United States for the word ‘tweet‘. Apparently a trademark application has also been filed for the word in Europe as well. TechCrunch sought comment and received the following response from Twitter co-founder Biz Stone:

The ecosystem growing around Twitter is something we very much believe in nourishing and supporting. As part of this support, we encourage developers of new applications and services built using Twitter APIs to invent original branding for their projects rather than use our marks, logos, or look and feel. This approach leaves room for applications to evolve as they grow and it avoids potential confusion down the line.

As Wauters notes, this is quite vague. So what’s going on?

One possibility is that Twitter’s investors and lawyers have pressured/convinced management that Twitter’s laissez-faire philosophy as it relates to Twitter’s trademarks, logos and look and feel threatened the company’s rights. In the US, trademark protection can be diminished or lost altogether if it isn’t defended.

It’s also possible that Twitter is finally waking up to the fact that, as it tries to monetize, it will need some way of differentiating its own offerings from those of unaffiliated third parties. Branding can be a powerful tool for differentiation but when third parties are freely using your trademarks, logos and look and feel, it’s often hard to separate the ‘official‘ from the ‘unofficial‘.

While Twitter’s apparent growing concern over its intellectual property is probably wise, there are a few problems.

First, the cat’s already out of the bag. Twitter’s anything goes approach has produced an ecosystem filled with developers who are using the words ‘Twitter‘ and ‘tweet‘, employing Twitter’s logo and creating websites that take freely from the look and feel of Twitter’s own website. The fact that Twitter hasn’t really done anything to prevent this, and has actually promoted the work of some of these developers, is going to make it much more difficult for Twitter to take action without causing a backlash.

Second, as it relates to the word ‘tweet‘, it’s not entirely clear what Twitter’s surprisingly recent trademark application will do. Tweet itself is obviously a common word. As it relates to the three categories in which it is seeking trademark protection, it’s hard to argue that ‘tweet‘ hasn’t in many ways been genericized. Specifically, the widespread use of ‘tweet‘ as a noun and verb seems to pose some significant challenges for Twitter in enforcing its rights to the mark ‘tweet‘ if its trademark application is approved.

My prediction: Twitter will take a more business-like stance vis-à-vis its intellectual property because it has to but it’s unlikely to take a hard-line stance because it would risk alienating so much of its developer ecosystem; some sort of balancing act that puts it in a position to maintain its rights while not creating a backlash is required. Unfortunately for Twitter, such a balancing act won’t be easy and its loose approach in the area of intellectual property probably isn’t going to do Twitter any favors as a business.

Update: in a post on the Twitter Blog, Biz Stone explains why Twitter is attempting to trademark the term ‘tweet‘:

We have applied to trademark Tweet because it is clearly attached to Twitter from a brand perspective but we have no intention of “going after” the wonderful applications and services that use the word in their name when associated with Twitter. In fact, we encourage the use of the word Tweet. However, if we come across a confusing or damaging project, the recourse to act responsibly to protect both users and our brand is important.

This sounds nice in theory but in practice, it’s unclear what benefit Twitter will really derive from the ‘tweet‘ trademark if it doesn’t enforce it anytime it’s used in relation to an unaffiliated Twitter-related venture. Already, the term is pretty darn close to being genericized in my opinion.

Again, my suspicion is that Twitter’s investors and lawyers have some concerns about management’s laissez-faire approach to how third parties are using the Twitter brand and the ‘tweet‘ trademark application may be a sign of that.

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